Search Results for: prisoners/page/59/[2001] EWCA Civ 1546/page/8/www.bailii.org/eu/cases/ECHR/1975/1.html

The UK can, and should, leave the Human Rights Convention: Shadow AG’s advice underlines Conservative Party’s policy

7 October 2025 by Rosalind English

Update (10 October 2025): Kemi Badenoch has confirmed that Conservative Party policy will be to withdraw the UK from the European Convention on Human Rights (ECHR) and to repeal the Human Rights Act if they win the next general election. This was made clear in both her statements ahead of and during the annual Conservative Party Conference in October 2025, following a detailed legal review led by the Shadow Attorney General, Lord Wolfson, which found that remaining in the ECHR would fundamentally obstruct key party policies on immigration, veterans’ rights, prioritising citizens for public services, and reforming sentencing and protest laws. The Conservative Party leader explicitly stated in her conference speech: “We must leave the ECHR and repeal the Human Rights Act. The next Conservative manifesto will contain our commitment to leave. Leaving the Convention is a necessary step.”

Lord Wolfson’s advice was commissioned by the Conservative Party and is known as the Wolfson Report. It is important to note at the outset that, despite its title on the Party website, Lord Wolfson emphasises that this is “neither a policy paper nor a report. It is a legal analysis”, in other words, advice to the leader of the Conservative party. For reasons of economy in the following paragraphs I will refer to this 185 page document as a “report”.

David Wolfson KC is Shadow Attorney General Lord Wolfson of Tredegar, a prominent commercial lawyer and former justice minister. We have heard his views on the role of international law and his differences with government AG Richard Hermer domestic on Law Pod UK earlier this year.

In this paper he sets out an exhaustive examination of the relationship between the European Convention on Human Rights (ECHR) and UK law, specifically focusing on areas where the ECHR constrains the government’s ability to enact domestic policies. This report could be pivotal in shaping the party’s commitment to leave the ECHR, as it concludes that such a move is necessary to fulfil a range of key policy priorities.

For balance, here is the late Conor Gearty’s column in the London Review of Books Unwelcome Remnant – the threat to the Human Rights Act , lamenting judicial avoidance of ECHR solutions to problems and relying on common law or UK legislative measures instead. Gearty cites many examples of this, most notably the Supreme Court’s ruling in the For Women Scotland v The Scottish Ministers which he says “completely ignores the impact of human rights law.”

Back to Wolfson.

Overview

The report scrutinises the effect of the ECHR in five core public policy areas: immigration control, prosecution of military veterans, prioritisation of British citizens in social policy, sentencing and protest laws, and economic growth impediments (particularly linked to climate-based challenges to infrastructure projects). Wolfson sets out a detailed legal analysis and a set of evaluative “tests” for national sovereignty, arguing that only by exiting the ECHR and repealing the Human Rights Act can the UK achieve these policy goals unimpeded.

Coronial powers and the rights of the unborn (Part 1)

11 August 2023 by Ruby Peacock

In this two-part article, Maya Sikand KC, Tom Stoate, and Ruby Peacock, explore two difficult questions arising from the inquest into the ‘harrowing circumstances’ of the death of a baby, Aisha Cleary, at HMP Bronzefield. 

This first part seeks to answer the question: should coroners have jurisdiction to investigate stillbirths?

The second part will examine whether foetuses should enjoy Article 2 rights which do not conflict with the rights of the mother.

Rianna Cleary, who was 18 years old at the time, gave birth to Aisha Cleary alone in her cell in HMP Bronzefield, on the night of 26 September 2019, without medical or any other assistance. Ms Cleary’s two calls for help via the prison emergency intercom system in her cell were first ignored, then unanswered – despite there being a 24-hour nursing station on her wing in the prison. Terrified and in pain, without knowing what to do, Ms Cleary felt compelled to bite through her umbilical cord. Aisha’s birth was not discovered by prison staff until the next morning – after other prisoners raised their concerns – at which time Aisha was ‘not moving, had a tinge of blue on her lips, but was still warm’.^[1] Unsuccessful resuscitation attempts were made, with an adult oxygen mask in the absence of any paediatric or neo-natal mask. Less than an hour later, paramedics confirmed that Aisha had died.  The Senior Coroner for Surrey, Richard Travers, stated that Aisha ‘arrived into the world in the most harrowing of circumstances’.^[2]

Following a month-long inquest, involving ten interested persons (‘IPs’) and more than 50 witnesses, including three expert witnesses, Mr Travers concluded that numerous causative failings contributed to Aisha’s death.

The Round-up: Domestic Violence Consultation and some Strasbourg cases

28 January 2019 by Alethea Redfern

In the News 

The Home Office has published a domestic violence consultation response and draft bill  as part of a landmark overhaul of domestic abuse laws. Theresa May promised an overhaul almost two years ago, and the bill was a key pledge in the 2017 Queen’s Speech. 

The bill introduces the first statutory definition of domestic abuse, which encompasses financial and emotional abuse as well as coercive and controlling behaviour. It would prohibit perpetrators from cross-examining their victims in court, impose polygraph tests on high-risk offenders as a condition of release, and create new powers to force perpetrators into rehabilitation programmes. Among other new protections for victims, the bill would make domestic abuse complainants automatically eligible for special measures in the criminal courts. It would also establish a new “office of the Domestic Abuse Commissioner” tasked with improving response and support for victims across public services. 

Domestic violence is a major human rights issue which can deprive women of their rights to health and physical and mental integrity, freedom from torture, inhuman and degrading treatment, and the right to life. The bill has been welcomed by some as a significant step towards combatting the issue . However, writing in the Guardian, Julie Bindel criticises the new measure as “impossible to implement” and likely to be “misued by vindictive men” and “misunderstood by those tasked with protecting women”.

Are “squalid” prison conditions and the response to the Covid-19 pandemic breaching human rights?

6 July 2020 by Jonathan Metzer

The latest reports of HM Chief Inspector of Prisons and the Parliamentary Joint Committee on Human Rights lay bare the conditions in some British prisons.

Some of the language that is used to describe living conditions in the Chief Inspector’s report is shocking – including “appalling”, “squalid”, “intolerable”, “extremely squalid” and beset with “vermin and filth”.

The Chief Inspector’s view is that such conditions “should not feature in 21st century jails”. This conclusion was expressed prior to the further impact caused by the Covid-19 pandemic.

Since the pandemic, the Government has introduced measures to address the risk of contagion including a blanket ban on visits since around 24^th March which has still not been revisited despite the Covid-19 threat level having been reduced to level 3 on 19^th June.

The conclusion of the Parliamentary Joint Committee on Human Rights is that the Government’s response and the deficiencies in the measures to mitigate the impact of this “have put at risk the right to family life of up to an estimated 17,000 children of mothers in prison”.

In the view of this author, the evidence indicates that in several respects the UK may well be in breach of vital protections for prisoners and their families under Articles 3 and 8 of the European Convention on Human Rights (ECHR). This extended piece will examine these issues in detail.

Feature | The duty to investigate deaths under human rights law: Part 2

15 July 2010 by Matthew Hill

R (Humberstone) v Legal Services Commission [2010] EWHC 760 (Admin) – Read case

Part 2 of Matthew Hill’s feature on the duty to investigate deaths under human rights law (read Part I).

A recent High Court decision (see previous post) concerning the funding of a party at a coroner’s inquest has highlighted the importance of distinguishing between the two different types of investigative duty that arise under Article 2 ECHR.

It is argued in this post that imprecise terminology and a failure to appreciate that Article 2 is engaged in Jamieson as well as Middleton inquests has confused this area, and that the learned judge in R (Humberstone) v Legal Services Commission [2010] EWHC 760 (Admin) erred by eliding the investigative duties and the case-law from which they emerged.

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Vavilov – a restatement of reasonableness – Adrienne Copithorne (2)

6 February 2020 by Guest Contributor

In the previous post under this topic, I referred to Mr Justice Binnie’s proposal for the exercise of the standard of reasonableness review in the 2007 case of Dunsmuir v New Brunswick. This would eventually resurface in Vavilov, where the majority of the Supreme Court of Canada held that the starting point should be a presumption that the reasonableness standard applied. In the interim, there had been much academic, practitioner and judicial commentary on the lack of clarity and consistency in the application of the principles espoused by the majority in Dunsmuir in subsequent cases and on the difficulty in applying such principles in claims. Members of the Supreme Court also expressed concerns in subsequent cases, for example, Abella J in Wilson v Atomic Energy of Canada Ltd 2016 SCC 29. The majority in Vavilov explicitly refers to such criticism coming from the judiciary and academics but also from litigants before the Court and organizations representing Canadians who are affected by administrative decisions. As the Court stated,

These are not light critiques or theoretical challenges. They go to the core of the coherence of our administrative law jurisprudence and to the practical implications of this lack of coherence.

The Court also referred to concerns that the reasonableness standard was sometimes perceived as “advancing a two-tiered justice system in which those subject to administrative decisions are entitled only to an outcome somewhere between “good enough” and “not quite wrong”.

Protest and proportionality in the Supreme Court: The Safe Access Zones Bill Reference [2022] UKSC 32

14 December 2022 by anuragdeb

Introduction

Abortion in Northern Ireland has had a fraught and frequently distressing history. Until 2019 when the UK Parliament reformed the law, the jurisdiction had the most restrictive approach to abortion in the UK. But even this reform has not reformed the reality, either for those seeking abortion services or information and counselling on such services or for those who work at providers of such services lawfully. I have previously written about the situation as it stood in March 2021, and the reality has changed little since then, with two notable exceptions. In March 2022, the Northern Ireland Assembly passed the Abortion Services (Safe Access Zones) Bill (Northern Ireland) (‘SAZ Bill’) to create buffer zones around lawful abortion providers, in an attempt to criminalise the harassment and intimidation of people who seek or work in such places. On 2 December 2022, tired of the glacial pace and political controversy in commissioning abortion services, the Secretary of State for Northern Ireland moved to commission such services himself. In the interim, the Attorney General for Northern Ireland (‘AGNI’) referred the SAZ Bill to the UK Supreme Court to determine whether it was lawful.  

On 7 December 2022, the UK Supreme Court handed down judgment in the Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill (‘SAZ Reference’). The question for the Supreme Court was whether the Assembly had the necessary legislative competence to pass this Bill, bearing in mind that the Assembly cannot make laws which are incompatible with the ECHR.

But the SAZ Reference also drew another ECHR issue to the Court’s attention: the assessment of proportionality and reasonable excuse defences in criminal trials involving protests. The main points here were the consideration of the Court’s previous judgment in Ziegler and the judgment of the Divisional Court (England and Wales) in Cuciurean. Unusually for a devolution reference, therefore, the Supreme Court sat as a panel of seven Justices. The SAZ Reference judgment was unanimous and authored by Lord Reed.

Article 3 psychiatric cases: history and latest developments (Part 1) — Ruby Peacock

7 January 2021 by Ruby Peacock

In this two-part article, Ruby Peacock, an aspiring barrister and currently a legal and policy intern at the Legal Resources Centre in Cape Town, examines the history of medical claims brought under Article 3 of the European Convention on Human Rights.

The first part analyses the history of how such cases have been decided, with particular focus on claims based on psychiatric illness. The second part will examine the recent developments in the law and what these may mean for the future.

The Good Friday Agreement and the European Convention on Human Rights

29 August 2023 by anuragdeb

Introduction

On 11 August, a piece from Professor Richard Ekins KC (Hon) set out a case for the UK denouncing the European Convention on Human Rights (ECHR) and leaving the treaty system altogether. One of the main arguments in favour of this is that it would ‘restore Parliament’s freedom, on behalf of the British people, to decide what our laws should be’. This marks one of the more recent such calls, amid a growing chorus of Ministers in the UK Government and Conservative Party MPs to leave the ECHR. Also, it should be noted that we have been here before. The constitutional aspects of such a move aside, there are particular reasons why it would impact Northern Ireland. While Northern Ireland does not feature in Professor Ekins’ 11 August piece, he has previously written about the interaction between the ECHR and the Good Friday Agreement 1998 (GFA), which underpins the modern devolution settlement in Northern Ireland and which brought an end to a brutal and deadly conflict. This interaction is the subject of this post.

The true statistics behind judicial review’s success rates

23 March 2015 by Guest Contributor

Avid readers of the legal press may have spotted the eye-catching statistic that in 2014 a meagre 1% of claims for judicial review were successful.

The figure is derived from the statement in the MOJ’s overview of the Civil Justice Statistics Quarterly (October – December 2014) published on 5 March 2015, in which the MOJ said:

The proportion of all cases lodged found in favour of the claimant at a final hearing has reduced … to 1% in 2013 and has remained the same in 2014.

The overview provided by the MOJ is unsurprisingly hardly a neutral presentation of the statistics. The statement is clearly intended to tell a story about the futility of the vast majority of judicial review claims, adding fuel to the MOJ-stoked fire that has been raging against judicial review.

In fact the statistic tells the opposite story, as revealed by the underlying tables.
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Strategic litigation: the noble pursuit of litigation – Polly Botsford

15 April 2014 by Guest Contributor

Though strategic litigation and test cases make essential contributions to the rule of law, there’s concern that they’re being abused. And, as funding comes under attack, there’s a greater need than ever for pro bono lawyers to take on test cases to ensure access to justice and accountability.

Following the fall of communism, the European Roma Rights Centre (ERRC) identified a significant problem with the educational segregation of Roma children in parts of Central and Eastern Europe. Roma children were ending up in what were termed ‘special schools’, supposedly set up for children with intellectual disabilities, and thus segregated from mainstream schooling. In 1998, the ERRC decided to investigate.

To try and bring about reform, it became apparent that the ERRC needed to identify a test case to put before the courts. In order to find the right applicant it interviewed hundreds of Roma families in the region and found 18 Roma children in the Czech Republic to be the test case. The legal angle the ERRC adopted was indirect discrimination: entry tests to mainstream schools were set for all children but they were biased against Roma children because they focused on Czech customs and language. The Roma children often failed and so were subsequently put in the special schools. The centre found that Roma children were twenty-seven times more likely than non-Roma children to be sent to a special school.
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Freedom, Asylum Seekers, and Two Lots of European Human Rights – Michael Rhimes

17 February 2016 by Guest Contributor

C-601/15 JN (in French only) offers important insights into the detention of asylum seekers. It also somewhat of a double bill, involving not one but two sets of European Human Rights.

In this post I will set out the facts, give a quick refresher of the relationship between the European Convention on Human Rights (ECHR) and the Charter of Fundamental Rights of the European Union (Charter). I will conclude with an overview of the decision itself.

The decision contains a number of important elements, but the one I would like to focus on is the “fit” between the ECHR and the Charter. This manifests itself on two levels. The first is the abstract relationship between the ECHR and the Charter (see Marina Wheeler’s recent post on this: A Charter too Far). This is quite straightforward (see below). The more interesting part is the relation between the different ways the ECHR and the Charter protect from unlawful detention. As shall be seen, the former lists narrow criteria for the lawfulness of detention, whereas the second effectively provides a broad protection against unlawful detention. Reconciling the two was at the heart of JN.

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The Round-Up: Legal Aid for prisoners in the Court of Appeal

18 April 2017 by Thomas Beamont

The Court of Appeal last week partially granted an application for judicial review of the cuts to Legal Aid in certain categories of prison law. The judgment may change the face of legal representation for prisoners across the UK.

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Incoherent, incomplete and disrespectful: The Conservative plans for human rights – Angela Patrick

3 October 2014 by Guest Contributor

“Where, after all, do universal human rights begin? In small places, close to home – so close and so small that they cannot be seen on any maps of the world. … Without concerned citizen action to uphold them close to home, we shall look in vain for progress in the larger world.” Eleanor Roosevelt (1958).

For human rights to matter, they must be made real first, at home, in those small places that matter to us all. After almost four decades of debate, it was in this vein that the Westminster Parliament, with Conservative Party support, voted to “Bring Rights Home” in the Human Rights Act 1998 (“HRA”). As we wake this morning to the front pages of two national newspapers decrying human rights “madness” and welcoming freshly minted (but fairly familiar) Conservative Party policy plans to condemn the HRA to history, this is a good message to remember.

The proposals are incoherent in their consideration of domestic law, incomplete in their engagement with the devolved constitution and disrespectful to the UK’s commitments in international law. They undermine the cause of bringing rights closer to home and seemingly have no care for progress of minimum standards in the wider world.

What rights?
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The Coronavirus lockdown does not breach human rights (Part One) — Leo Davidson

30 April 2020 by Guest Contributor

Last week on this blog we published Francis Hoar’s article which argued that the Coronavirus Regulations passed by the Government in response to the COVID-19 pandemic involve breaches of the European Convention on Human Rights, particularly in relation to the interference they create in the rights to liberty, private and family life, freedom of worship, freedom of assembly, the prohibition on discrimination, the right to property and the right to education.

In this first of two response articles, Leo Davidson, a barrister at 11KBW, argues that the Regulations do not involve any breach of human rights law, as they fall within the executive’s margin of discretion for the management of this crisis, particularly given the serious potential implications of the pandemic and the reliance that the Government has placed on scientific and medical advice.

In the second article, Dominic Ruck Keene and Henry Tufnell, of 1 Crown Office Row, will argue that the interferences in rights created by the Regulations are proportionate when taken in the context of the pandemic.

Note: This article involves examination of the legal provisions that accompany some of the restrictions on movement of individuals announced by the Government in order to protect life in the current crisis. The current Government guidance setting out these and other restrictions can be found here. Legal scrutiny is important but should not be taken to question the undeniable imperative to follow that guidance.

Introduction

With the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, the Government has imposed a number of restrictive measures, colloquially referred to as the ‘lockdown’, in an effort to hamper the spread of the coronavirus.

These restrictions are controversial, and reasonable people disagree about whether they go too far, or not far enough.  As a matter of human rights law, however, they are lawful.  The Government has a positive obligation under human rights law to safeguard life and health; in balancing any conflict between this objective, and other rights, the Government has a significant margin of discretion, including in the assessment of scientific evidence.

Francis Hoar argues on this blog that the lockdown disproportionately interferes with various rights under the European Convention of Human Rights (ECHR) and is therefore unlawful.  The analysis is wrong, primarily because:

1. It ignores the human rights implications of the pandemic itself, which must be balanced against the effects of the responsive measures.
2. In the circumstances, the Government has a wide margin of discretion when balancing competing rights and interests.
3. The margin is particularly wide given the complex scientific evidence underlying the decision.

I address these three point in turn, below.